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Friday, March 09, 2012

In a narrow but still important victory for free speech, Chief Magistrate Judge Maria-Elena James of the United States District Court for the Northern District of California has rejected once again the motion of presidential candidate Ron Paul for leave to pursue discovery compelling Google and Twitter to identify the anonymous user or users who created and publicized a YouTube video that trashed then-candidate Jon Huntsman while urging viewers to vote for Paul.

In previous blog posts here and here, I described what I saw as the stakes in this case — that this lawsuit threatens both the right of individual citizens to speak out for or against candidates for high public office without having to get permission from the candidates they favor, and the right to discuss candidates anonymously, without having to worry about what increasingly rabid supporters on both sides may say about them or even do to them. We were especially worried because, although that same federal court had repeatedly adopted the highest of standards for the identification of anonymous speakers (the Dendrite standard), Paul’s lawyers deliberately sought their discovery ex parte without acknowledging those cases, or, indeed, Ninth Circuit cases that preclude their trademark claims. Last month, Judge James directed Paul’s lawyers to address the concerns that we had articulated in an amicus brief; and indeed, she allowed us to file a second brief addressing Paul’s arguments.

In her ruling last night, released yesterday evening, Judge James has once again refused to allow the discovery, but she did so on narrower grounds that we had urged on her. She decided that Paul’s complaint did not state an adequate claim for trademark infringement because there were insufficient allegations either that the video was commercial or that it was in commercial competition with Paul. A trademark claim, she decided, requires both. And because every standard for identifying anonymous speakers requires at the very least a legally sufficient complaint, Judge James ruled that Paul’s request for discovery was insufficient, and hence she denied it without prejudice to bring renewed.

The decision is a good one, even if she did not call Paul’s lawyers on having come to her ex parte without an honest presentation of the governing law. Implicit in her ruling is, however, the warning that if the Paul campaign amends its complaint to make such allegations and then renews its application for discovery, she will have to choose among standards and hence look at the evidence. Assuming that she follows Dendrite and Highfields Capital v. Does, she will also have an opportunity to address our arguments about the ethical lapses on the part of Paul’s counsel. We can only hope that the Paul campaign concludes that it has done enough to distance itself from this offensive video, not to speak of doing enough damage to free speech, to warrant letting this case go.

Comments

Anonymous speech has its place in a free society, but it is not the same thing as false-flag speech. If you claim to speak in someone's name, then you should forfeit your claim of anonymity against them. If you want to circulate an anonymous racist video about Jon Huntsman's family, then keep it anonymous.

Suppose someone embittered by Ralph Nader's criticism of Israel started putting out video clips supposedly of Ralph Nader explaining his opposition to Israel in inflammatory antisemitic terms, eg the Holocaust was a hoax, Jews are too pushy, a Jewish conspiracy shuts Palestinians out of the mainstream media, etc. And then he continued to put out bogus Nader video clips with more subtle poison. Do you really argue that Nader should have no recourse to find out who he is?

They (campaign finance laws) don't stay on the books that well. And the theory Paul's campaign was espousing here was unrelated to any justification for campaign finance laws, it was simply trademark infringement.

Related to trademark, it would be really interesting, from a First Amendment, perspective if the Supreme Court's decision in US v. Alvarez (http://www.scotusblog.com/case-files/united-states-v-alvarez/) has anything to say about Paul's theory of trademark infringement here. From what I've read that was one theory that got some play at oral argument.

Just to be clear: I could start a website called "ObamaForAmerica.net", present it as race-baiting and advocating for violent revolution, closing with "Vote Obama 2012", and there would be no free speech implications?